Failing to vote on a cloture motion has the same effect as voting against the motion: it deprives the motion of one of the 60 votes needed to agree to it. There are two important exceptions to the three-fifths requirement to invoke cloture.
First, under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This provision has its origin in the history of the cloture rule. Before , two-thirds of the Senators present and voting a quorum being present was required for cloture on all matters. In early , at the beginning of the 94 th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture.
However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from two-thirds of the Senators present and voting a maximum of 67 votes to three-fifths of the Senators duly chosen and sworn normally, and at a maximum, 60 votes on all matters except future rules changes, including changes in the cloture rule itself.
If the Senate does vote to invoke cloture, that vote may not be reconsidered. On the other hand, it is in order to reconsider the vote by which the Senate voted against invoking cloture. In current practice, supporters of cloture sometimes enter a motion to reconsider a vote against cloture, so that a second vote on cloture can later occur without a second petition being filed. They can arrange for the second vote to take place at any point, as long as the Senate then agrees, first, to the motion to proceed to the motion to reconsider, and then to the motion to reconsider itself.
Both motions are non-debatable under these circumstances and require only a simple majority vote. If the Senate agrees to the motion to reconsider, the new vote on the cloture motion then occurs immediately, and cloture is invoked if three-fifths of the full Senate or other majority, as appropriate now votes for it. The Senate sometimes agrees by unanimous consent to alter the way in which various requirements of the cloture rule apply to consideration of a specified matter.
In particular, Senators by unanimous consent sometimes permit a cloture motion to be filed on a matter that is not then pending. Also, as mentioned, the required quorum call preceding a cloture vote is often waived by consent. In addition, the Senate may give unanimous consent to adjust the time when the cloture vote will take place.
On some occasions, the Senate has even agreed, by unanimous consent, to vote on cloture at a specified time even though no cloture motion is formally filed. Any debatable question the Senate considers can be filibustered and, therefore, may be the subject of a cloture motion, unless the time for debate is limited by the Senate's rules, by law, or by a unanimous consent agreement. Consequently, Senators may present cloture motions to end debate on bills, resolutions, amendments, conference reports, motions to concur in or amend amendments of the House, executive business nominations and treaties , and various other debatable motions.
In relation to the Senate's initial consideration of a bill or resolution, there usually can be at least two filibusters under the Senate's standing rules: first, a filibuster on the motion to proceed to the measure's consideration; 19 and second, after the Senate agrees to this motion, a filibuster on the measure itself. If the Senate cannot agree to take up a measure by unanimous consent, the majority leader's recourse is to make a motion that the Senate proceed to its consideration.
This motion to proceed , as it is called, usually is debatable and, consequently, subject to a filibuster. Once the Senate adopts the motion to proceed and begins consideration of the measure itself, a filibuster on the measure then may begin, so that cloture must be sought anew on the measure itself. Except by unanimous consent, cloture cannot be sought on the measure during consideration of the motion to proceed, because cloture may be moved only on a question that is pending before the Senate.
Threatened filibusters on motions to proceed once were rare but have become more common in recent years. In such situations, it has become common for the majority leader to move to proceed to consider the measure, immediately submit a motion for cloture on his motion to proceed, and then immediately withdraw the motion to proceed.
This proceeding permits the Senate to consider other business while the petition ripens rather than having to entertain extended debate on the motion to proceed. On the second following day, if the Senate defeats the motion for cloture, it continues with other business; if cloture is invoked, the action automatically brings back the motion to proceed as the pending business but under the restrictions of cloture.
Sometimes an amendment provokes a filibuster even though the underlying bill does not. If cloture is invoked on the amendment, the operation of cloture is exhausted once the amendment is disposed of. Thereafter, debate on the bill continues, but under the general rules of the Senate. On occasion, cloture has been invoked, in this way, separately on several amendments to a bill in succession.
Alternatively, cloture may be invoked on the bill itself, so that debate on the amendment continues under the restrictions of cloture on the overall measure. If the amendment is not germane to the bill, however, its supporters will oppose this approach, for as discussed later the cloture rule requires that amendments considered under cloture be germane.
If cloture is invoked on a bill while a non-germane amendment is pending, the amendment becomes out of order and may not be further considered. In such a case it may be necessary instead to invoke cloture on the amendment to secure a final vote on it and then, after the amendment is disposed of, move for cloture on the bill as well. After the Senate has passed a measure, additional action may be necessary so the Senate may go to conference with the House on the legislation.
The motions necessary for this purpose are debatable, and as a result, supporters of the measure have occasionally found it necessary to move for cloture thereon.
Inasmuch as conference reports themselves are debatable, however, it may be necessary to move for cloture on a conference report. Occasionally, cloture has also been sought on other debatable questions, such as: motions to waive the Budget Act, overriding a presidential veto, or motions to recommit a measure with instructions that it be reported back forthwith with an amendment. The relation of cloture motions to filibusters may depend on when the cloture motions are filed.
Prior to the s, consideration of a matter was usually allowed to proceed for some days or even weeks before cloture was sought or cloture might not be sought at all. In more recent decades, it has become common to seek cloture on a matter much earlier in the course of consideration, even immediately after consideration has begun.
In some cases, a cloture motion has been filed, or has been deemed to have been filed, even before the matter in question has been called up. Because the rules permit filing a motion for cloture only on a pending question, either of these actions, of course, requires unanimous consent. When cloture is sought before any dilatory action actually occurs, the action may be an indication that the threat of a filibuster is present, or at least is thought to be present.
There often has been more than one cloture vote on the same question. If and when the Senate rejects a cloture motion, a Senator then can file a second motion to invoke cloture on that question. In some cases, Senators anticipate that a cloture motion may fail and file a second motion before the Senate has voted on the first one.
For example, one cloture motion may be presented on Monday and another on Tuesday. If the Senate rejects the first motion when it matures on Wednesday, the second motion will ripen for a vote on Thursday. If the Senate agrees to the first motion, of course, there is no need for it to act on the second. There have been instances in which there have been even more cloture votes on the same question. During the th Congress , for example, there were eight cloture votes, all unsuccessful, on a campaign finance bill.
It also may be necessary for the Senate to attempt cloture on several different questions to complete consideration of a single measure. The possibility of having to obtain cloture first on a motion to proceed to consider a measure and subsequently also on the measure itself has already been discussed. Cloture on multiple questions may also be required when the Senate considers a bill with a pending amendment in the nature of a substitute.
As already mentioned, once cloture has been invoked on a question, Rule XXII requires amendments to that question to be germane. As with other amendments, accordingly, if a pending amendment in the nature of a substitute contains provisions non-germane to the underlying bill, and the Senate proceeds to invoke cloture on the bill, further consideration of the substitute is rendered out of order. In such a case, bringing action to a conclusion may require obtaining cloture first on the substitute and then, once the substitute has been adopted, also on the underlying bill.
In current practice, it is not unusual for the majority leader to move for cloture on the underlying bill immediately after filing cloture on the amendment in the nature of a substitute. Under these circumstances, the two-day layover required for each cloture motion is being fulfilled simultaneously for both. The first cloture motion filed on the amendment in the nature of a substitute ripens first, at which point the Senate votes on that cloture motion.
If cloture is invoked and after the Senate votes on adopting the substitute—after the possible 30 hours of post-cloture consideration—the second cloture motion on the bill is automatically pending, having already met the two-day layover. In most cases, invoking cloture on a bill does not produce an immediate vote on it. In general, the effect of invoking cloture on a bill is only to guarantee that a vote will take place eventually.
In general, Rule XXII imposes a cap of no more than 30 additional hours for the Senate to consider a question after invoking cloture on it. The time used in debate is counted against the 30 hours, but so too is the time consumed by quorum calls, roll call votes, parliamentary inquiries, and all other proceedings that occur while the matter under cloture is pending before the Senate.
The hour period can be increased if the Senate agrees to a non-debatable motion for that purpose. Adopting this motion also requires a three-fifths vote of the Senators duly chosen and sworn. During the period for post-cloture consideration, each Senator is entitled to speak for a total of not more than one hour. Senators may yield part or all of their time to any of four others: the majority or minority leaders or the majority or minority floor managers.
None of these Senators can accumulate more than two hours of additional time for debate; but, in turn, they can yield some or all of their time to others. There is insufficient time for all Senators to use their entire hour for debate within the hour cap for post-cloture consideration. This disparity results from a amendment to the cloture rule. Before , there was no cap at all on post-cloture consideration; the only restriction in Rule XXII was the limit of one hour per Senator for debate.
The time consumed by reading amendments and conducting roll call votes and quorum calls was not deducted from anyone's hour. As a result, Senators could and did engage in what became known as post-cloture filibusters. By offering one amendment after another, for example, and demanding roll call votes to dispose of them, Senators could consume hours of the Senate's time while consuming little if any of their allotted hour for debate. In theory, at least, this time period could accommodate the one hour of debate per Senator but only if Senators used all of the hours only for debate.
Then, in , the Senate agreed, without significant dissent, to reduce the hours to 30 hours, while leaving unchanged the allocation of 1 hour for each Senator to debate. The result is that there is not enough time available under cloture for each Senator to speak for an hour. However, Rule XXII does provide a limited protection for all Senators by providing that, when the 30 hours expire, "any Senator who has not used or yielded at least ten minutes, is, if he seeks recognition, guaranteed up to ten minutes, inclusive, to speak only.
Under these conditions, Senators may still be able to extend post-cloture consideration, but it typically would last little, if any, longer, than the 30 hours available under cloture. Once cloture has imposed its definitive limit on further consideration, opponents sometimes see little benefit in the limited delay they might still obtain, and rather than insist on the use of the full 30 hours, they may instead permit a final vote well before the full time expires.
In this case, the Senate may agree by unanimous consent that the 30 hours be considered to run continuously, even when the Senate is not actively considering the measure or even does not remain in session. There is one other notable difference in the Senate's debate rules before and after cloture is invoked. As discussed above, Senate floor debate normally does not have to be germane, except when the Pastore rule applies.
Under cloture, debate must be germane. This requirement derives from the language of Rule XXII that allows each Senator to speak for no more than one hour "on the measure, motion, or other matter pending before the Senate. Senators wishing to enforce the requirement that debate be germane can do so by making points of order from the floor.
There are several key restrictions governing the amendments that Senators can propose under cloture that do not apply to Senate floor amendments under most other circumstances.
Some of these restrictions also apply to other motions Senators may offer, or actions they may take, under cloture. Thus, immediately after a successful cloture vote, the majority leader or another Senator typically makes a point of order that one or more amendments that were pending when the vote began now must "fall" because they are not germane to the matter on which the Senate just invoked cloture.
This germaneness requirement helps explain why the Senate may have to invoke cloture on an amendment to a bill and then invoke cloture again on the bill itself. It is quite common for a Senate committee to report a bill back to the Senate with an amendment in the nature of a substitute—a complete alternative for the text of the bill as introduced. The Senate almost always adopts this substitute as it has been amended on the floor immediately before voting to pass the bill as amended by the substitute.
However, it also is not unusual for some provisions in the committee substitute to render it non-germane to the bill. Thus, if the Senate invokes cloture on the bill before it votes on the committee substitute, the substitute becomes out of order as non-germane, so that the Senate cannot agree to it.
To protect the committee substitute or any other non-germane amendment the Senate is considering , the Senate can first invoke cloture on the amendment. Doing so limits further consideration of the amendment to no more than 30 more hours. If the Senate then adopts the amendment, cloture no longer is in effect and Senators can filibuster the bill as amended.
However, inasmuch as the previous non-germane amendment is now part of the text of the bill, it therefore cannot now be non-germane to the bill. At this point, therefore, the Senate may again vote to invoke cloture, this time on the bill as amended. Any Senator can appeal the chair's ruling that a certain amendment is non-germane, allowing the Senate to overturn that ruling by simple majority vote. However, the Senate is unlikely to take this action because doing so could fundamentally undermine the integrity and utility of the cloture procedure.
Unless a Senator could be confident that, under cloture, his colleagues could not offer amendments on unrelated subjects that the Senator would insist on filibustering, that Senator would have serious qualms about ever voting for cloture. On some occasions when a Senator appealed a ruling of the chair under cloture that an amendment was not germane, Senators who may have supported the amendment on its merits nonetheless voted to sustain the ruling of the chair with the long-run viability of the cloture rule in mind.
Cloture is sometimes sought not for the purpose of overcoming a filibuster by debate, but primarily to trigger the requirement for germaneness of amendments. One way in which this situation can occur may arise when Senators wish to secure floor consideration for a bill that the majority party leadership is reluctant to schedule for floor consideration. Supporters of the bill may offer the text of that bill as a non-germane amendment to another bill that the majority party leadership is eager to pass.
Opponents of the amendment may respond by moving for cloture on the bill, then prolonging the debate so as to prevent a vote on the amendment until the time comes for voting on the cloture motion. If the Senate votes to invoke cloture, the non-germane amendment is subject to a point of order. In this way, its opponents can dispose of the amendment adversely without ever having to vote on it, or even on a motion to table it—but only, of course, if they can mobilize three-fifths of the Senate to vote for cloture.
This possibility, which is more than hypothetical, illustrates that not every cloture vote takes place to overcome a filibuster that is already in progress. Under the general cloture procedures of paragraph 2 of Rule XXII, to be in order after cloture has been invoked, amendments must be submitted at the desk in writing and for printing in the Congressional Record before the cloture vote takes place.
Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p. Senators sometimes submit a large number of amendments to a bill for printing in the Congressional Record even before a cloture motion is presented.
In some cases, this may be understood or intended as a signal that the Senators who submitted the amendments are contemplating a filibuster. In practice, the deadline in Rule XXII usually gives Senators most or all of a day after cloture is proposed to draft germane amendments to the bill.
Submitting an amendment in writing does not exempt that amendment from the restriction that only germane amendments are in order under cloture. Unless we change the rules. It has a funny name, but the filibuster is a simple procedural mechanism that allows the minority party to block legislation from advancing in the Senate.
The filibuster is the ability to keep debate open on a legislative item until the Senate votes to close it. The practical result — in an era when both sides are playing legislative hardball — is that you need to either get 60 votes or bypass the filibuster to accomplish anything. More on that below. The filibuster is inherently undemocratic, and not required under the Constitution.
Even after the filibuster was created in the early s, its use was rare. That changed in the second half of the 20th century when the filibuster was increasingly used by both parties to block legislation. However, while both parties have used the filibuster, it has been weaponized to a greater extent than ever before by Republicans in order to kill landmark pieces of legislation, from civil rights to gun violence prevention and beyond. An important thing to remember is that the filibuster is not required by the Constitution.
In fact, the Founding Fathers were well aware of the dangers of minority rule and purposely designed the Senate to be majoritarian — i. There's a reason, after all, that there's no filibuster written into the Constitution. Our Founders were deeply read in classical history, and they had good reason to fear the consequences of a legislature addicted to minority rule.
The filibuster is undemocratic: it empowers the minority to block the will of voters and of the American public, and it will be used by Republicans to block every single progressive priority, even in the best-case scenario where Democrats control of the House, Senate, and White House.
Here are just a few examples of how the filibuster has been used to stop the will of voters:. The filibuster was used for years to block landmark civil rights legislation.
Strom Thurmond R-SC holds the record for the longest speaking filibuster in Senate history in opposition to the Civil Rights Act he spoke nearly uninterrupted for 24 hours and 18 minutes ; and collectively, opponents of civil rights legislation filibustered the Civil Rights Act for 60 working days, the longest combined filibuster in history. While both of these bills passed eventually passed, the filibuster was used effectively for several years by Republicans to deny civil rights protections for millions of African Americans and other minorities.
The filibuster continues to be used to block gun violence legislation. Senators have two options when they seek to vote on a measure or motion. If no objection is heard, the Senate proceeds to a vote.
One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in and , only a simple majority is required to end debate.
A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate.
Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate.
Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster. The most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22 , the cloture rule that requires 60 votes to end debate on legislation.
Absent a large, bipartisan Senate majority that favors curtailing the right to debate, a formal change in Rule 22 is extremely unlikely. A more complicated, but more likely, way to ban the filibuster would be to create a new Senate precedent. The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer typically a member of the Senate agrees, that ruling establishes a new precedent.
If the presiding officer disagrees, another senator can appeal the ruling of the chair. In both and , the Senate used this approach to reduce the number of votes needed to end debate on nominations.
The majority leader used two non-debatable motions to bring up the relevant nominations, and then raised a point of order that the vote on cloture is by majority vote. The presiding officer ruled against the point of order, but his ruling was overturned on appeal—which, again, required only a majority in support. In sum, by following the right steps in a particular parliamentary circumstance, a simple majority of senators can establish a new interpretation of a Senate rule.
The Senate could also move to weaken the filibuster without eliminating it entirely. For example, a Senate majority could prevent senators from filibustering the motion used to call up a bill to start known as the motion to proceed.
A second option targets the so-called Byrd Rule, a feature of the budget reconciliation process. Step 6: Like with cloture on the motion to proceed, the vote to invoke cloture on the bill itself takes place two days after the motion is filed, on Wednesday. That means the Senate has spent 15 calendar days on these filibuster-preventing actions before they can vote on the bill itself.
Cloture ends filibusters because it ends everything else, too. Now, instead of debating legislation one bill at a time, lawmakers cram as much into every bill as they can.
There are fewer bills passed. Why not end the filibuster? His vote would be necessary to reinterpret the rules. Manchin and Biden both suggested earlier in that Congress revert filibusters to the talking-only, Mr. Smith style that was the norm before the s. Ahead of the Senate vote on whether to establish the Jan. Wolf, CNN. The story of modern Washington is the story of the filibuster. Mobile Article px.
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